Opinion
46186.
ARGUED MAY 5, 1971.
DECIDED OCTOBER 1, 1971. REHEARING DENIED NOVEMBER 3, 1971.
Declaratory judgment. Dougherty Superior Court. Before Judge Kelley.
Lee Hitchcock, William S. Lee, for appellant.
D.C. Campbell, Jr., Thad Gibson, Burt Burt, Donald D. Rentz, H. P. Burt, Divine, Busbee Wilkin, W. T. Divine, Jr., for appellees.
Where the plaintiff is not faced with any dilemma with regard to the course it should pursue but seeks confirmation of what it has already done, declaratory judgment is not an available remedy.
ARGUED MAY 5, 1971 — DECIDED OCTOBER 1, 1971 — REHEARING DENIED NOVEMBER 3, 1971 — CERT. APPLIED FOR.
Norfolk Dedham Mutual Fire Insurance Company filed a complaint in Dougherty Superior Court seeking a declaratory judgment and naming as defendants Katrina and Ralph Jones, Frank and Charles Cumbaa, and Ed Loosier. The complaint alleged that the plaintiff issued a home owners' policy containing personal liability coverage to the defendant Frank Cumbaa; that Charles Cumbaa is his minor son and was an insured within the terms of the policy; that Katrina Jones was accidently injured by Charles Cumbaa and Ed Loosier; that the plaintiff was not notified of the occurrence until about 20 months thereafter; that civil action 5030 was filed in the Dougherty Superior Court by Ralph Jones, father of Katrina Jones, against the defendants Ed Loosier and Charles Cumbaa; that the plaintiff declined to defend the action on the ground that Frank and Charles Cumbaa had violated the terms of the insurance policy by failing to give plaintiff written notice of the occurrence as soon as practical as required by the policy; that a verdict was rendered in favor of Ralph Jones in civil action 5030.
The complaint further alleged that Frank Cumbaa and Charles Cumbaa filed an action (5472) against the plaintiff on the insurance policy seeking to recover the amount of judgment in civil action 5030; that civil action 5472 is still pending in Dougherty Superior Court; that the principal defense in that action is a failure of Frank and Charles Cumbaa to give the plaintiff written notice required by the policy.
The complaint then set out that civil action 5960 was filed in the Dougherty Superior Court by Katrina Jones against Ed Loosier and Charles Cumbaa for personal injuries; that Charles Cumbaa filed a third-party complaint in civil action 5960, naming the instant plaintiff a third-party defendant and seeking judgment against it; that the instant plaintiff has filed a third-party answer and motions to dismiss the third-party complaint; that one of the principal defenses in the third-party answer and motion is based on a denial of coverage for the failure of Frank and Charles Cumbaa to give written notice required by the policy; that the instant defendants are plaintiffs in civil action 5472 and civil action 5960 in which the same issues were involved, but an adjudication in one would not be res judicata in the other; that an actual justiciable controversy exists between the parties; that the court should take jurisdiction of the controversy and declare the rights, liabilities and other legal relations of the parties so that the plaintiff might be afforded relief from uncertainty and insecurity with respect to its rights, status and future conduct and to the end that plaintiff may know whether the insurance policy imposes a duty upon it affording liability coverage. The prayers were for a temporary injunction and for a judgment declaring whether or not liability coverage is afforded with regard to the occurrence and the actions pending in the Dougherty Superior Court. The various defendants filed answers to the complaint. Both the plaintiff and the defendants filed motions for summary judgments which were denied by the trial judge. The plaintiff appeals from the denial of its motion for summary judgment.
1. Plaintiff alleged that a justiciable controversy existed, and that the court should take jurisdiction of such controversy and declare the rights and legal relations of the parties so that the plaintiff might be relieved from uncertainty and insecurity in respect to its rights, status and future conduct. While some of the defendants to this action admitted these allegations, the defendants Katrina and Ralph Jones in their answer denied the same. See Section 8 (b) of the Civil Practice Act ( Code Ann. § 81A-108 (b); Ga. L. 1966, pp. 609, 619; 1967, pp. 226, 230).
2. As movant for summary judgment the plaintiff had the burden to establish as a matter of law whether he was entitled to a declaratory judgment. A declaratory judgment may not be granted where the rights of the parties have already accrued and there are no facts or circumstances showing that an adjudication of the plaintiff's rights is necessary in order to relieve it from the risk of taking any future undirected action, which action without direction would jeopardize its interest. See Pinkard v. Mendel, 216 Ga. 487 (2) ( 117 S.E.2d 336). Furthermore, "a declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction, in which the same questions may be raised and determined." Kiker v. Hefner, 119 Ga. App. 629, 631 ( 168 S.E.2d 637). See Frost v. Gazaway, 122 Ga. App. 244, 246 ( 176 S.E.2d 476). In this case it affirmatively appears that the same questions to be determined are raised in other pending cases. Moreover, the plaintiff here is not faced with any dilemma with regard to the course it should pursue but seeks confirmation of what it has already done in the past. Hence the holding in Farmers Union Warehouse of Metter v. Bird, 224 Ga. 842 ( 165 S.E.2d 148), is controlling here. See U.S. Fidel. c. Co. v. Bishop, 121 Ga. App. 75, 77 ( 172 S.E.2d 855), and Employers Liab. Assurance Corp. v. Berryman, 123 Ga. App. 71, 72 ( 179 S.E.2d 646). See also Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga. App. 41 ( 134 S.E.2d 886). The trial judge properly denied the motion for summary judgment.
Judgment affirmed. Jordan, P. J., and Evans, J., concur.